LIM YEW CHYE & SONS REALTY DEVELOPMENT SDN BHD v 1. ) IRAMA SETIA SDN BHD 2. ) SAN TAT CONSTRUCTION SDN BHD

Case Significance

Illustrates a tailored interlocutory injunction protecting a registered proprietor against trespass, granting prohibitory relief where damages are inadequate for permanent alteration of land while refusing a mandatory restoration order pending trial.

This High Court decision at Shah Alam concerns an application for an interim injunction to restrain trespass to land by a neighbouring developer and its contractor. The plaintiff, Lim Yew Chye & Sons Realty Development Sdn Bhd, the registered proprietor of some twenty-eight acres of land subdivided into numerous lots in Bandar Kuala Kubu Baharu, alleged that the defendants, the developer of an adjoining mixed development and its construction contractor, had entered its land without consent and carried out earthworks, excavation, slope cutting and drain construction, including the removal and sale of soil. It applied to restrain the defendants from entering, encroaching on or carrying out any work on its land pending trial. The court applied the established principles governing interim injunctions. It held that trespass to land is actionable per se and that a serious issue to be tried had been established, supported by photographic evidence and by the defendant's own affidavit admitting works near the boundary. It found that damages would be an inadequate remedy because of the permanent alteration of the land and its uniqueness, and that the balance of convenience favoured the plaintiff, while an undertaking and the existence of hoarding fences did not render the application academic given the risk of recurrence. Balancing the protection of the registered proprietor's rights against the need not to stifle legitimate development, the court refused the plaintiff's prayer for an interim mandatory injunction requiring restoration of the land at that stage, but granted a prohibitory injunction restraining further entry and works, directed the defendants to maintain the existing hoarding fences and boundary markers, reserved the claim for damages and an account for trial, and made costs in the cause. The judgment is a useful illustration of a tailored interlocutory injunction protecting a landowner against trespass while permitting lawful development to continue.